Olic v. Lizaraga

Filing 63

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 02/08/17 recommending that the undersigned adopts the discussion in the January 9, 2017 orderas its Findings and Recommendations herein. The undersigned finds that Nettles barsconsideration of this case as a habeas corpus case; it should be dismissed. Referred to Judge Kimberly J. Mueller Objections due within 14 days. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MILORAD OLIC,

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No. 2:14-cv-02120 KJM GGH
Petitioner,

v.

FINDINGS AND RECOMMENDATIONS

JOE A. LIZARAGA.,
Respondent.

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Plaintiff is a state prisoner proceeding pro se, has filed a petition for a writ of habeas

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corpus under to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge

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pursuant to Local Rule 302(c)(21).

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On February 9, 2016, the district court declined to adopt the Magistrate Judge’s findings

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and recommendations recommending dismissal for failure to oppose respondent’s motion to

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dismiss and giving petitioner an opportunity to prosecute this action based on petitioner’s January

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4, 2016 filing which the court construed as an “overdue opposition.” ECF No. 48. On March 25,

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2016 the Magistrate Judge issued new findings and recommendations recommending that

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respondent’s motion to dismiss be granted on the merits, finding that to grant petitioner’s claim

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would not necessarily result in earlier release under controlling law at the time, and therefore that

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petitioner could not state a cognizable habeas claim. ECF No. 51. On September 8, 2016 the

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district court declined to adopt the findings and recommendations and referred the motion to
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dismiss back to the Magistrate Judge for consideration of the Ninth Circuit’s recent opinion in

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Nettles v. Grounds, 830 F.3d 922 (9th Cir. 2015)(en banc). ECF No. 57.

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On January 9, 2017 the undersigned filed an Order discussing inter alia Nettles which was

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served on all parties. In this order, the undersigned found that petitioner failed to overcome the

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barriers to his habeas petition described in the Order and prior Findings and Recommendations,

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and was given the further opportunity of attempting to persuade the court that Nettles does not bar

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habeas jurisdiction in this case, converting his pending action into a civil action under 28 U.S.C. §

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1983, or dismissing his habeas petition without prejudice to refilling his claim as a section 1983

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claim. ECF No. 61. On January 23, 2017 petitioner declined to elect a section 1983 remedy, and

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disputed whether Nettles had any impact on his case. ECF No. 62.

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Conclusion

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The undersigned remains persuaded that Nettles bars consideration of this action as a

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habeas action. Accordingly, the undersigned adopts the discussion in the January 9, 2017 order

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as its Findings and Recommendations herein. The undersigned finds that Nettles bars

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consideration of this case as a habeas corpus case; it should be dismissed..

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These findings and recommendations are submitted to the United States District Judge

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assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court. The document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” Any response to the objections shall be filed and served within

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fourteen days after service of the objections. Failure to file objections within the specified time

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may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th

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Cir. 1991).

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Dated: February 8, 2017

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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